dissenting. — In Thorndike v. City of Boston, 1 Metcalf 242, this rule is recognized: “Where evidence has been improperly received or rejected, and the verdict is found against the party taking the exception, and a motion for a new trial is madS on that ground, such motion will not be granted, if the court can see plainly from the whole evidence, that independently of the evidence receiv*28ed or rejected, the evidence in support of the verdict so decidedly preponderates, that a verdict the other way would be set aside as against evidence.” And this, says the learned Chief Justice in delivering the opinion, is “ the rule recently adopted in the courts of common law, limiting the broader construction formerly put upon the powers of the courts in this respect.” Rutger v. Farr, 4 Adolph. & Ellis 56; Wright v. Taltham, 7 Ib. 330; Crevo v. Barrett, 1 C. M. & R. 919.
Following this rule as one in every respect safe and consistent with the strictest legal principle, I cannot arrive at the conclusion that this case should be affirmed, it being first determined that there was error in the admission and rejection of certain testimony. I suppose the converse of the rule above stated to be true; that is to say, that a new trial should be granted unless the court can see plainly that independent of the evidence rejected or received, the evidence in support of the verdict so decidedly preponderates, that a verdict the other way would be set aside. The rule in its direct and converse statement, seems to me to result, necessarily, fairly and properly, from the plain and fundamental principles governing trial by jury. It is the duty of a court to permit none but competent evidence to go to a jury, and to receive all that is competent. The province of the jury is to aim at truth from the legitimate and competent evidence thus submitted to them. With the exercise of this duty, by the jury, when fairly and honestly exercised, there should be no interference. And in discharging it, no proper or competent evidence should be withheld from them; nor should any incompetent be given them. True it is, that cases are constantly arising in practice, where, after a full and thorough trial, it is manifest to a court, that testimony received, or it may be rejected, erroneously, is entirely immaterial, and could in no manner change the result in a second trial. And in such cases, there would certainly be no reason or propriety in permitting further litigation.
Take a case, however, like the one before us, where there is *29a large mass of testimony bearing upon a question as difficult of solution in its nature and character, perhaps, as any other ever determined by jurors ; where matters apparently of the smallest importance frequently have great and just weight in its determination; where minds are so apt to honestly differ; where the testimony at least does not preponderate very decidedly in favor of the verdict; and I think it is departing very much from well established principles, and is an unwarranted interference with the province of the jury to say that the testimony improperly recived or rejected could have had, and would have had, no influence in assisting them in arriving at truth. I certainly am very far from believing that if the verdict had been the other way, upon the testimony submitted, it would have been plainly wrong. Yiewing the case as if standing upon a motion for a new trial upon the ground that the verdict was against the evidence, I would not for a moment think of interfering with the finding; and yet I do not hesitate to say that upon the testimony, if acting as a juror, I should have found the other way. Thus regarding the proof, I of course cannot say that a verdict for plaintiff, the admitted errors being corrected, would be plainly wrong or that it should be set aside as against evidence.
But there is still another view of the case that I think strongly supports this position. We concur in the conclusion that the opinion of a non-professional witness, as to the sanity or insanity of the testator, without a detail of the facts upon which the opinion is founded, is not admissible. If .accompanied by the facts, then I think upon authority, it would be admissible. Had this rule been applied throughout the trial, I think other testimony, beside that referred to in the opinion of the majority of the court, would have been admissible and had a very decided influence upon the verdict. For this reason, therefore, a new trial should be granted.
I concur, for the most part, in the view's presented and positions assumed in the majority opinion, except as above indicated. In some instances I should be inclined to adopt a less strict rule in the examination of witnesses, when inquiring into the conduct and peculiarities of .the decedent.
*30In my opinion the case should be reversed and remanded for a new trial. Such is not the opinion, however, of a majority of the court, and it must therefore stand affirmed.